Is Someone’s Mental State Taken Into Consideration In A Criminal Case?

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

Yes it is, but the system is woefully out-of-date, under-funded and, frankly, backwards. I’ve had many discussions with defense lawyers who initially will be excited about how we use brain imaging and neuroscience to create a treatment-based sentence, instead of just putting people in prison where they get worse. But they all say the same thing. “Oh, that’s bad for business.” I’m not kidding. My own colleagues are saying this, and with prosecutors I’ve had these discussions where I have a little PowerPoint presentation of about five minutes that explains what we do with brain imaging: what it means and why we’re looking at it for a departure ground. I’ve had a prosecutor with a straight face look at me and say, “What does that have to do with intent?”

You see, law started a long time ago, and most judges, prosecutors and defense lawyers are still in that tradition of looking at it from a legal perspective. Under the law, everybody is presumed sane. And basically, there’s sane and insane, and not a whole lot of middle ground. So they have these preconceived notions. For example, one of my favorites has been around forever, and that’s the whole concept of teaching criminals a lesson. I’ve heard so many judges say that over the years that it’s not funny. Yet we find the same people bouncing in and out of the legal system, repeatedly. Right now in Okaloosa County, Florida, there was a study that came out a few months ago that said that 25% of the inmates held at the jail in Crestview are mentally ill. What’s really shocking about this is not that one quarter of the inmates are mentally ill: It’s the way that they define mentally ill.

Those that they deemed mentally ill were pretty much in the “I’m Jesus” category. So the reality is the number of people in our jails and prison with substance abuse issues and mental health disorders is much higher than we’re led to believe. On the issue of addiction and substance abuse disorders, we have an entire political morality play that almost sounds like it goes back to the 1980s with the whole “Just Say No” campaign. I would amend that slogan for a lot of politically-minded judges, prosecutors and elected public defenders to say “Don’t Think, Just Say No” because they don’t want people really thinking about this: they just want their vote, and they want to pay off the donor class. That’s the reality of what’s going on in politics. It extends into our criminal justice system, and that is probably one of the biggest problems that we have.

We also have conflicts in the law that make a judge’s job difficult. Some of those conflicts you see in Florida. For example, in the area of DUI litigation, let’s say somebody has a plea offer that for whatever reason contains 30 days in the county jail. One of the things the legislature has allowed is that person can go to inpatient treatment for 30 days instead of 30 days in jail if the judge allows it. However, if the case is a felony and you’re looking at even stronger sanctions, the law says that substance abuse or addiction is not a legal ground for a downward departure and treatment.

In misdemeanor court, that 30 days in jail for somebody convicted of a DUI can be used for treatment, whereas in felony court the very reason we have treatment in the DUI case is no longer valid, and instead there’s a greater focus on punishment. It doesn’t make sense. You look at what happened in the Brock Turner case, where there was massive outrage that he only got 90 days in jail and will live with a sex offender designation and registration for the rest of his life. What we’re not talking about is wouldn’t it be smarter to take people convicted of alcohol-related and sexual offenses and give them a proper diagnostic evaluation, a customized treatment plan, including a dangerousness assessment, and then craft legal sentences that are actually smart?

Sex offender registration has not protected a single person from a sex offense in the entire country in my opinion. However, if we were giving people diagnostic evaluations that were comprehensive enough and included brain imaging, then we would have a much better idea of how to treat these individuals so that they can be released safely back into the public, and we could create restorative justice in a more effective manner.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

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